This vote was on an amendment that would have limited the attorneys’ fees that can be awarded in cases related to the Endangered Species Act.

Sen. Mike Lee (R-UT) offered the amendment during consideration of a bill authorizing construction of a controversial oil pipeline. Sen. Lee’s amendment would have tacked on a provision capping the attorneys’ fees awarded in endangered-species cases that are argued in federal court. Federal law did not limit these awards, but Sen. Lee’s amendment would have instituted a limit of $125 per hour.

Sen. Lee argued that the amendment would discourage a “dishonest, distorted practice” in which activists sued the federal government, settled out of court for a more favorable outcome, and then collected attorney’s fees. He said the practice wasted money and encouraged legal outcomes weighted too heavily toward protection of endangered species.

“Congress must put an end to policymaking by litigation, and it must do so by removing the incentives to engage in this kind of litigation,” Sen. Lee said. “This simple fix would deter the frivolous lawsuits that so often end up in closed-door settlements with federal agencies.”

Opponents of Sen. Lee’s amendment argued that it would jeopardize ordinary Americans’ ability to challenge federal rulings that could harm them or the environment. The courts and Congress have allowed attorneys’ fees to protect the interests of these less-politically powerful individuals, and lawmakers should not erode them, they said.

“Basically, what the Lee amendment does is say you will not be able to (recoup) the attorneys' fees at the cost of doing business, and their hope is that citizens will then not have representation before the courts on issues such as clean air, clean water, and other environmental issues,” Sen. Maria Cantwell (D-WA) said.

Even though Sen. Lee’s amendment received 54 “yea” votes and only 45 senators voted “nay,” the amendment was defeated because it was brought up under Senate rules that require 60 votes for passage. Voting “yea” were 54 Republicans. Voting “nay” were 45 Democrats. As a result, the Senate defeated the effort to limit the attorneys’ fees that can be awarded in cases related to the Endangered Species Act.